Wunderlick, Charles v. Wilson, Martha Jane , 2013 Tex. App. LEXIS 5571 ( 2013 )

REVERSE and REMAND; and Opinion Filed May 7, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01597-CV
CHARLES J. WUNDERLICK, Appellant
V.
MARTHA JANE WILSON, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-02410-2010
OPINION
Before Justices Moseley, O'Neill, and Lewis
Opinion by Justice Lewis
Appellant Charles J. Wunderlick appeals from the trial court’s order granting the motion
for summary judgment filed by appellee Martha Jane Wilson. In four issues, Wunderlick asserts
the trial court erred in granting Wilson’s motion. Wunderlick contends the summary judgment
evidence failed to conclusively establish that his compensation was not substantially reduced
without good cause and the trial court should have interpreted “good cause” in the employment
context. For the reasons that follow, we reverse and remand to the trial court for further
proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 1990, Wunderlick and Wilson entered into a marriage settlement
agreement (the agreement) to settle their interests and obligations in all marital property as part
of their divorce. The agreement obligated Wunderlick to pay Wilson contractual alimony of
$1,000 per month for an indefinite term, to continue until terminated pursuant to the agreement.
According to the agreement, there were five events that would terminate Wunderlick’s alimony
obligation: (1) the death of husband or wife, (2) husband’s termination from Frisco Wholesale
Lumber Company (FWL) without good cause by action of the board of directors, (3) substantial
alteration of husband’s position at FWL without good cause, (4) substantial reduction of
husband’s compensation without good cause by action of the board of directors of FWL, or (5)
the sale of FWL. Wunderlick paid Wilson alimony of $1,000 per month for twenty years, until
January 10, 2010.
On November 3, 2008, the FWL board of directors reduced the annual salaries of its
officers, including Wunderlick, to $1.00 per year in response to the recession. Wunderlick is the
chairman, president, treasurer and shareholder of FWL. The board also eliminated the officers’
expense accounts, laid off half of the company’s employees, and closed one facility.
Notwithstanding the reduction in his salary, Wunderlick continued paying monthly alimony to
Wilson until January 10, 2010, when he ceased making payments.
On June 15, 2010, Wilson filed suit against Wunderlick for breach of contract.
Wunderlick filed an answer and separate counter-petition for declaratory relief, alleging that a
termination event had occurred on November 3, 2008, and seeking recovery of alleged
overpayments. Wilson filed a traditional and no-evidence motion for summary judgment,
asserting that no termination event had occurred and Wunderlick had breached the agreement by
failing to make the monthly alimony payments. On August 16, 2011, the trial court signed an
order granting Wilson’s motion for summary judgment. On September 21, 2011, the trial court
signed a judgment, detailing the amount of damages and attorneys’ fees awarded to Wilson, and
dismissing Wunderlick’s claims against Wilson. The trial court subsequently denied
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Wunderlick’s motion to reconsider, motion for findings of fact and conclusions of law, and
motion for new trial. This appeal followed.
II. APPLICABLE LAW
A. Summary Judgment Standard Of Review
The standard for reviewing a traditional motion for summary judgment is well
established. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v.
Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). We review a summary
judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex.
2007); Kaye/Bassman Int’l Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 812 (Tex. App.—
Dallas 2010, pet. denied). We will affirm a summary judgment if the record establishes that
there is no genuine issue of material fact and the movant is entitled to judgment as a matter of
law. See TEX. R. CIV. P. 166a(c); see also Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215–16 (Tex. 2003). A matter is conclusively established if ordinary minds could
not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine
Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex 1982); Ogg v. Dillard’s, Inc., 239 S.W.3d
409, 416 (Tex. App.—Dallas 2007, pet. denied).
When a party files a no-evidence summary judgment, the burden shifts to the non-movant
to present enough evidence to raise a genuine issue of material fact on the challenged elements.
TEX. R. CIV. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We
review a no-evidence motion for summary judgment under the same legal sufficiency standard
used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.
2003); Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.—Dallas 2010, no pet.). Our
inquiry focuses on whether the non-movant produced more than a scintilla of probative evidence
to raise a fact issue on the challenged elements. King Ranch, 118 S.W.3d at 750–51; Wal-Mart
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Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). Evidence is no more than a scintilla
if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact. King Ranch,
118 S.W.3d at 750–51. We examine “the entire record in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts against the motion.”
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson,
168 S.W.3d 802, 824 (Tex. 2005)).
B. Construction Of Written Agreement
In construing a written contract, our primary concern is to ascertain and give effect to the
true intentions of the parties as expressed in the agreement. El Paso Field Services, L.P. v.
MasTec North America, Inc., 389 S.W.3d 802, 805 (Tex. 2012); Carbona v. CH Medical, Inc.,
266 S.W.3d 675, 680 (Tex. App.—Dallas 2008, no pet.). We consider the entire writing and
attempt to harmonize and give effect to all the provisions of the contract by analyzing the
provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165
S.W.3d 310, 312 (Tex. 2005) (per curiam); Hackberry Creek Country Club, Inc. v. Hackberry
Creek Home Owners Ass’n, 205 S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied). “No
single provision taken alone will be given controlling effect; rather, all the provisions must be
considered with reference to the whole instrument.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d
223, 229 (Tex. 2003). If we determine that the contract’s language can be given a certain or
definite legal meaning or interpretation, then the contract is not ambiguous and we will construe
it as a matter of law. El Paso Field Services, 389 S.W.3d at 806. But if the contract language is
susceptible to two or more reasonable interpretations after applying the pertinent rules of
construction, the contract is ambiguous. J. M. Davidson, 128 S.W.3d at 229; Seagull Energy E
& P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). Whether a contract is
ambiguous is a question of law. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006)
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(orig. proceeding); Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). A court may conclude a
contract is ambiguous even in the absence of such a pleading by either party. Sage St. Assocs. v.
Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993); Hackberry Creek, 205 S.W.3d at 56.
When a contract contains an ambiguity, the granting of a motion for summary judgment is
improper because the intent of the contracting parties is an issue of fact. Coker, 650 S.W.2d at
394; Hackberry Creek, 205 S.W.3d at 56.
III. DISCUSSION
Wunderlick argues the trial court erred in granting Wilson’s motion for summary
judgment because: (1) the trial court incorrectly concluded that no terminating event had
occurred under the agreement, (2) the summary judgment evidence failed to conclusively
establish that Wunderlick’s compensation was not substantially reduced without good cause by
his employer, (3) the summary judgment evidence established that Wunderlick’s compensation
was substantially reduced for the employer’s benefit and through no fault of Wunderlick, and (4)
the trial court erroneously applied the common, ordinary meaning to the contract term “good
cause,” instead of interpreting the term in the employment context. Wilson responds that
summary judgment was properly granted. Wilson asserts the trial court correctly applied the
common, ordinary meaning of “good cause” because neither the agreement nor Texas law define
the term or require it be interpreted in the employment context. Wilson also argues that
summary judgment evidence established that Wunderlick agreed that his compensation was
substantially reduced for a good reason and therefore, Wunderlick admitted that no terminating
event had occurred.
We are asked to review the agreement to ascertain whether Wunderlick’s obligation to
make alimony payments to Wilson was terminated. The pertinent language is as follows:
The alimony will also terminate if the Husband is terminated in his employment
with Frisco Wholesale Lumber Company without good cause by action of the
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Board of Directors of such company, or if the Husband’s position at Frisco
Wholesale Lumber Company is substantially altered without good cause, or his
compensation is substantially reduced without good cause, by action of the Board
of Directors of Frisco Wholesale Lumber Company.
The parties dispute whether Wunderlick’s compensation was substantially reduced without good
cause. Neither party contends the agreement is ambiguous.
The agreement does not define “good cause.” The trial court also did not define the term
in its order granting Wilson’s motion for summary judgment. Wunderlick contends that the term
“good cause” must be interpreted in the employment context, based solely upon the employee’s
conduct. He claims that under Texas law, “good cause” is a term of art with a specific meaning
in the employment context and refers us to a number of employment law cases in which courts
considered whether an employee was terminated for “good cause.” Wunderlick argues an
employer does not have “good cause” to demote or terminate an employee when it does so for its
own business reasons or because of a downturn in the economy. Although Wunderlick does not
cite to any cases in which the term “good cause” was construed in the employment context in a
divorce settlement agreement, he nevertheless argues that the intent of the parties to so interpret
“good cause” is evident because the parties used language tying his alimony obligation to the
source of his income when drafting the agreement.
In response, Wilson argues there is no legal authority for Wunderlick’s position that
Texas law defines and imposes a strict meaning on the term “good cause” any time the term is
used. Wilson contends that because the parties did not define “good cause” within the
agreement, the plain, common, and ordinary meaning of “good cause” must be applied. She
asserts the plain, common, and ordinary meaning of “good cause” is synonymous with “good
reason.” Because Wunderlick admitted in deposition testimony that (1) his compensation was
substantially reduced because of the economic downturn, and (2) the economic downturn was a
good reason, Wilson argues Wunderlick admitted his compensation was substantially reduced for
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good cause. Therefore, Wilson argues, Wunderlick’s obligation to pay alimony was not
terminated even though his compensation was substantially reduced.
We have considered the entire writing and attempted to harmonize and give effect to all
the provisions by analyzing them with reference to the whole agreement. Frost Nat’l Bank, 165
S.W.3d at 312; J.M. Davidson, 128 S.W.3d at 229. If we construe “good cause” in the
employment context as suggested by Wunderlick, it could mean that Wunderlick’s compensation
was substantially reduced without good cause and his obligation to make alimony payments
terminated on November 3, 2008. If we give the term “good cause” its plain, common, and
ordinary meaning as suggested by Wilson, the provision could be construed to mean that
Wunderlick’s compensation was substantially reduced with good cause and his obligation to
make alimony payments continues. For purposes of construing a contract, “[a]mbiguity does not
arise simply because the parties advance conflicting interpretations of the contract; rather, for an
ambiguity to exist, both interpretations must be reasonable.” Lopez v. Munoz, Hockema & Reed,
L.L.P., 22 S.W.3d 857, 861 (Tex. 2000); see Jacobson v. DP Partners Ltd. P’ship, 245 S.W.3d
102, 106 (Tex. App.—Dallas 2008, no pet.); Sefzik v. Mady Dev., L.P., 231 S.W.3d 456, 460
(Tex. App.—Dallas 2007, no pet.).
In sum, the language in the agreement relating to whether Wunderlick’s compensation
was substantially reduced for “good cause” cannot be given a certain and definite meaning, and
we cannot determine the true intentions of Wunderlick and Wilson from the writing itself.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011).
We conclude the agreement is subject to two or more reasonable interpretations. Accordingly,
the agreement is ambiguous, and a fact issue exists as to the parties’ intent. See Milner v. Milner,
361 S.W.3d 615, 619 (Tex. 2012); J.M. Davidson, 128 S.W.3d at 229. The trial court therefore
erred in granting summary judgment in favor of Wilson. Coker, 650 S.W.2d at 394; Hackberry
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Creek, 205 S.W.3d at 56. We sustain Wunderlick’s fourth issue, and do not reach his remaining
issues. See TEX. R. APP. P. 47.1.
IV. CONCLUSION
Having sustained Wunderlick’s fourth issue, we reverse the trial court’s judgment and
remand this case to the trial court for further proceedings.
/David Lewis/
DAVID LEWIS
JUSTICE
111597F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHARLES WUNDERLICK, Appellant On Appeal from the 429th Judicial District
Court, Collin County, Texas
No. 05-11-01597-CV V. Trial Court Cause No. 429-02410-2010.
Opinion delivered by Justice Lewis.
MARTHA JANE WILSON, Appellee Justices Moseley and O'Neill participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings.
.
It is ORDERED that appellant CHARLES WUNDERLICK recover his costs of this
appeal from appellee MARTHA JANE WILSON.
Judgment entered this 7th day of May, 2013.
/David Lewis/
DAVID LEWIS
JUSTICE
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